Home / Publications / The exceptional applicability of the constitutional...

The exceptional applicability of the constitutional actions in corporate matters

The action for the protection of constitutional rights – in certain jurisdictions writ of amparo - (“acción de tutela”) is a constitutional action through which any person can claim before any judge in any moment and place, the protection of its fundamental rights.

In accordance with the Article 86 of the Colombian Constitution, the action for the protection of constitutional rights must be processed through an abbreviated and preferential proceeding, which means that the judge should prioritize the proceeding and rule within a maximum period of ten (10) days between the submission of the action and the sentence. The constitutional action can be filled in directly by any person who claims the protection of its fundamental rights or by its representative.

According to the Decree No. 2591 of 1991, the content of this action is informal, however, the petitionary must comply with the requirements set forth in the Constitution and in the above-mentioned Decree.

Article 86 of the Constitution states that the constitutional action will only proceed if the petitionary does not have any other defense mechanism, unless this action is used to prevent an irremediable damage. In addition, the action must be submitted in a reasonable term after the occurrence of the fundamental right infringement.

In commercial and corporate matters, the legal proceeding rules set the judicial proceeding to dispute or contest these matters before the jurisdiction. In particular, the civil judges and courts are competent to decide on the following matters: (i) All controversies that arise from the partnership agreement or by the application of the rules that governs legal entities of private law, as well as the nullity, dissolution, and liquidation of such entities; (ii) All the objections against shareholders and boards of directors decisions or any other governing board of legal entities ruled by private law.

In such way, due to the existence of other ordinary defense mechanisms, in principle, the constitutional action is not applicable to corporate matters. Nonetheless, constitutional Article No. 86 and the Article 8 of Decree No. 2591 set forth an exception for this rule: the constitutional action is applicable (even if the petitionary has other ordinary mechanisms) to protect its fundamental rights if the action is used as a transitory mechanism for the protection of fundamental rights and pretends to avoid the occurrence of an irremediable damage. In that case, the judge shall expressly state that the decision will be only applicable meanwhile the competent authority solves the dispute.

Even though the notion of irremediable damage does not have a legal definition, the Constitutional Court stated it is “a dangerous situation related to the direct violation of fundamental rights that can be modified and develop until it gets irreversible” (Judgment No. C – 531 of 1991. Eduardo Cifuentes Muñoz). In that order, according to the Court, an irremediable damage implies: (i) that the damage must be imminent; (ii) It must require urgent measures; (iii) the damage must be severe and (iv) The action needs to be imperative. (Judgment No. C – 225 of 1993. Vladimiro Naranjo Mesa).

In this way, some judges have found the existence of an irremediable damage in corporate matters that makes the constitutional action applicable. In those cases, it has been proved that the decisions of boards of directors or shareholders meetings directly violated fundamental rights of other members of these corporate bodies.

Regarding the decisions of boards of directors, shareholders meetings, or any governing bodies of legal entities, the ordinary mechanism is the one included in the Colombian General Procedural Code, Article 382. However, whether these decisions violate the fundamental rights, and the ordinary mechanisms are not efficient or sufficient for their protection, the constitutional action can be used as a transitory mechanism.

The judge´s ruling can be related to the violation of any fundamental right including the following:

  1. Infringement of the living minimum wage: when it is demonstrated that the individual's basic access to the conditions required to their existence and growth have been infringed.
  2. Infringement of right to equality: the right to equality is developed in the constitutional Article 13 that sets forth that every person is equal before the law and shall receive the same protection of authorities and will have the same rights and opportunities without discrimination based on gender, race, national or family origin, language, religion, political or philosophical opinion.

In recent decisions, gender discrimination has become more relevant. The Constitutional Court has emphasized that the authorities should apply a gender perspective in the study of every case. The analysis must take into consideration the prohibition of gender discrimination, imposing material equality, and demanding the protection of people in a situation of manifest weakness. The regulation aims to reduce the historical inequality between men and women and implement the appropriate measures to stop the violation of women's rights, considering that the discrimination against women is still present in different areas of society. (Judgment No. T – 338/2108)

The foregoing is of great importance because it gives the possibility to claim the protection fundamental rights violated through decisions of governing bodies, even when there are other ordinary defense mechanisms if they are not effective and do not avoid imminent and urgent damage. Additionally, it implies that although constitutional rights are not established directly in the commercial law or in the bylaws of the company, they are of mandatory observance and compliance according to the Constitution.

Authors

Portrait ofMaría Fernanda Bejarano
María Fernanda Bejarano
Senior Associate
Bogotá
Portrait ofMichelle Lichtenberger
Michelle Lichtenberger
Associate
Bogotá
Jorge Ramírez, LL.M.